Opinion
G043951 Super. Ct. No. 07D000768
08-23-2011
In re Marriage of ALLISON OANH and VINH DINH TRAN. ALLISON OANH TRAN, Respondent, v. VINH DINH TRAN, Appellant.
Law Offices of Brian G. Saylin and Brian G. Saylin for Appellant. Allison Oanh Tran, in pro per.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed.
Law Offices of Brian G. Saylin and Brian G. Saylin for Appellant.
Allison Oanh Tran, in pro per.
Appellant Vinh Dinh Tran (husband) appeals from a judgment dissolving his marriage to respondent Allison Oanh Tran (wife). He challenges the child support, property division, and visitation provisions. But husband fails to show any error. The court acted within its discretion by imputing income to him. It properly divided the community estate, including quasi-community property brokerage account funds. And the judgment correctly reflects the court's visitation ruling. We affirm.
FACTS
Husband and wife were married in New Jersey in 1997, moved to California around 2003, and separated in 2007. They have two minor children. The court dissolved the marriage and divided the community estate in June 2010. It awarded "joint legal custody" to the parties and "sole physical custody" to mother, granting husband visitation one night a week, alternate weekends, and two weeks during the summer. It ordered husband to pay just over $1,000 per month in child support. Much of the judgment is uncontested. The following facts relate to issues raised on appeal.
Husband's Imputed Earnings
Husband holds a Ph.D. in organic chemistry from the University of California, Irvine. He has 10 years of industry experience as a section leader and senior research fellow for pharmaceutical companies. He earned $110,000 per year in 2002 and $115,000 from 2002 to 2004, when he was laid off.
After 2004, husband worked only as a chemistry tutor and part-time college instructor. He spent much of his time playing golf and hanging out with friends at coffee shops. Husband now earned $2,389 per month as an adjunct chemistry professor at two junior colleges.
A vocational expert found husband's earnings range was $100,000 to $117,000 as a pharmaceutical chemist. One source reported the median annual income for the Chemist V job category in Orange County was $100,548. Another source stated that in Orange County, the annual income for chemists with 10 years of experience ranged from $80,519 to $99,359. The expert noted: "The positions asking for a PhD in Organic Chemistry and strong experience appear to be located in Northern California and south toward San Diego. What this means is that [husband] will have a long job search time to find an appropriate position in the local area." The expert also found husband could earn about $59,000 to $73,000 as a full-time college professor. One available position listed an annual salary range of $74,093 to $103,536.
The court found husband could earn $100,000 per year. It rounded down to $96,000 ($8,000 per month) when it computed child support.
The Brokerage Accounts
When the parties still lived in New Jersey, husband opened a Charles Schwab brokerage account with stock options from his employer. Husband transferred about $265,000 in stock out of that account and wrote checks totaling more than $170,000. Husband also sold some other stock. Together, these transactions totaled over $460,000. Husband testified he used the money for "daily expenses," "groceries," "clothing," dining out, and stock purchases. But he could not identify payees for the checks or to where the $265,000 in stock was transferred — it was not reflected in tax returns. Wife testified she paid the household expenses, not husband. She did not know about the Schwab account or how the $460,000 was spent.
The court found husband "has not accounted" for $460,000 "from family funds," "over which [he] had complete control with no information or access [given] to [wife]." It found the $460,000 was quasi-community property. The court awarded the funds to husband, and awarded to wife the family home in its entirety ($360,000 in equity) as "an appropriate set off for all the stock funds unaccounted for by [husband]."
The Gold Bars
The parties agreed the couple received 10 small gold bars as a wedding present. Wife testified she last saw the gold in husband's possession after the wedding. Husband testified he had given the gold bars to wife and her mother, who sold them. Wife denied doing so. The court found husband was not credible and charged him with the $30,000 value of the gold.
The Lawsuit Proceeds
Husband received about $60,000 in 2004 from a lawsuit against a former employer. He testified he deposited that money in a business checking account and used it to start his tutoring business and pay family bills. But his check register showed he wrote virtually no checks for family bills. And his business credit card showed repeated charges for golf. Wife denied husband spent any of the lawsuit proceeds on family expenses. She produced records showing she paid the mortgage from 2005 to 2007. The court ordered husband to account for the $60,000, and charged him with any amount not shown to have been spent on the family.
Visitation
At one point, trial resumed after a four or five month continuance. The court and the parties agreed to "go over issue by issue" to see whether the court had issued any orders or tentative rulings. They eventually turned to the issue of custody and visitation. Wife's counsel stated as to visitation: "The only issue in regard to the children was holidays. And the holiday issue was father testified that he wanted some Christmas time and some summer time." She began reciting the prior visitation order, then stated: Husband "testified that he would like a week at Christmas, and one or two weeks in summer as his work allows; nonconsecutive." The court responded: "But the week at Christmas is consecutive." Wife's counsel replied: "Yes. One week at Christmas. One to two weeks nonconsecutive in the summer as his work allows."
When the court prepared its ruling, it was silent as to Christmas visitation for either party. Wife later prepared a proposed judgment, as ordered by the court, which was similarly silent.
Wife submitted that proposed judgment to the court on May 4, 2010, attaching correspondence between the parties' counsel. In a letter dated March 9, 2010, wife's counsel stated she was sending the proposed judgment to husband. In a letter dated April 2, 2010, wife's counsel stated: "Per my discussion earlier today with your office, enclosed is a revised copy of the Judgment including Christmas vacation. Please be advised, if I have not received the enclosed document signed approving it as to form and content within ten days of receipts, or a letter stating your objections, then I will submit a duplicate original of the former judgment without the Christmas vacation directly to the Court for signature . . . ." In a letter dated April 23, 2010, wife's counsel noted husband had not returned the revised proposed judgment, and she would file the original proposed judgment in three days. The court signed the original proposed judgment on June 7, 2010.
DISCUSSION
The Court Permissibly Imputed Income to Husband
In computing child support according to statutory guidelines, "[t]he court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (Fam. Code, § 4058, subd. (b).) Husband concedes the court may do so. He does not dispute the sufficiency of the evidence showing his earning capacity. (See In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1309 (Bardzik)[possible evidence of earning capacity includes expert opinion, pay scales, want ads, and the spouse's resume].)
All further statutory references are to the Family Code unless otherwise stated.
Husband contends, however, that the children's best interests are not served by imputing $96,000 in annual earning capacity to him. He claims that he could earn that much money only by relocating to Northern California or San Diego, which would ill-serve the children. And if he does not relocate, he reasons, basing his support obligation on imputed income will leave him with less money to spend on the children when they are in his custody, which would "effectively reduce[] overall monetary support for the children." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.)
Husband fails to show any abuse of discretion.
First, his relocation was not mandatory. The vocational expert did not rule out husband's ability to earn $96,000 in Orange County. To the contrary, the expert reported chemist salary figures around that amount in Orange County. One source indicated a salary range of $80,519 to $99,359; another source gave a median salary of $100,548. To be sure, the expert noted husband may "have a long job search time to find an appropriate position in the local area" because most "positions asking for a Ph.D. in Organic Chemistry and strong experience appear to be located in Northern California and south toward San Diego." But that is not the same as concluding husband must relocate to obtain a comparable position. Besides, husband points to nothing that would prevent him from living in or near Orange County while working "south towards San Diego."
Second, there is nothing remarkable about calculating a child support obligation that would leave husband with less money for him personally to spend on the children. All child support payments do that, whether income is imputed or not. The children are not left with less overall support if he pays child support with money he would have spent on the children himself. Moreover, even sole custodial parents may have earnings imputed. (E.g., In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1338.) A parent may not "avoid [the] obligation to contribute financially to [the children's] support" simply by preferring time spent with them over full employment — not unless that is in their best interests. (Id. at p. 1339.) "Ultimately, it is the job of the trial court to weigh all the needs of the children, not only their economic needs, against the ability of the parents to fill these needs." (Bardzik, supra, 165 Cal.App.4th at p. 1314 (conc. opn. of Rylaarsdam, J.).) Husband may disagree with the court's balancing, but he has not shown it was an abuse of discretion.
The Court Properly Divided the Community Property
After dissolution, the court must "divide the community estate of the parties equally." (§ 2550.) In general, "all property . . . acquired by a married person during the marriage while domiciled in this state is community property." (§ 760.) The community estate also includes "quasi-community property," (§ 63) which is any property that "would have been community property if the spouse who acquired the property had been domiciled in this state at the time of acquisition." (§ 125, subd. (a); accord Fredericks v. Fredericks (1991) 226 Cal.App.3d 875, 878 (Fredericks).) Quasi-community property may be divided equally between the parties upon dissolution "provided: (1) both parties have changed their domicile to California, and (2) after the change of domicile the spouses seek a legal alteration of their marital status in a California court." (Fredericks, at p. 878.)
Husband raises three challenges to the community property distribution. He contends the court wrongly divided the brokerage account, the gold bars, and the lawsuit proceeds. None of his claims have merit.
First, husband contends the court wrongly offset his interest in the family home with the unaccounted funds from the brokerage account. Not so. This presents a straightforward property characterization issue. The court found the funds were quasi-community property — or as the court put it, "having been domiciled in California at the time of the dissolution, it matters not where the property was acquired, if it would have been community property if acquired in California." (See § 125; Fredericks, supra, 226 Cal.App.3d at p. 878.) And as husband's counsel told the court, husband "has never disputed the fact that shares in the Schwab account are or should be considered to be quasi-community property."
This was a recurring concession. Husband's counsel: "It isn't [husband's] position that the opening balance of the Schwab account was separate property. He's not making that allegation. So if there is — [¶] The Court: Okay. [¶] [Husband's counsel]: So if there is some sort of question as to whether the opening balance was community property or separate property, it's his position it's community property. [¶] The Court: Okay. [¶] [Husband]: Yeah. [¶] [Husband's counsel]: Everything that went into the Schwab account was how it started, regardless of when they were to be exercised or when earned or whatever. That's community property. [¶] [Husband]: Oh yes."
Husband tries to muddy the waters by claiming the court impermissibly imposed a retroactive fiduciary duty. He claims the court required him to comply with the automatic disclosure requirements of section 721, subdivision (b). That statute was amended effective 2003 to refer to Corporations Code section 16403. (Stats. 2002, ch. 310, § 2; In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1425-1426 (Walker))It now imposes upon spouses the same fiduciary duty that partners have to "furnish each other without demand 'any information concerning the partnership's business and affairs reasonably required for the proper exercise of the partner's rights and duties. . . .'" (Walker, at p. 1427.) The Walker court held that spouses could not be held to this fiduciary duty for pre-2003 transactions. (Id. at p. 1428.) Doing so would "disrupt the repose that should follow the actions [they] undertook in accordance with the established customs and practices of their marriage . . . ." (Ibid.) Husband accuses the court of doing the same here.
Spouses' "confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Section 16403, 16404, and 16503 of the Corporations Code . . . ." (§ 721, subd. (b).)
But the two cases are apples and oranges. Walker is a fiduciary duty case. There, the wife failed to disclose to husband her depletion of his separate property funds. (Walker, supra, 138 Cal.App.4th at p. 1414.) That was the purported breach of fiduciary duty. No property had to be characterized or divided. In contrast, this is a property division case. Here, the court found the missing brokerage account funds were quasi-community property and included them in the property division accordingly. No fiduciary duty was implicated. The judgment does not invoke section 721 or even use the word "fiduciary." Husband's extensive reliance on Walker is much ado about nothing.
Second, husband challenges the court's distribution of the gold bars. The court charged husband with the value of gold bars. Husband claims insufficient evidence showed he still had the gold bars, noting he testified wife had sold them. But the court expressly found husband was "not credible" and expressly credited wife's testimony she last saw the gold bars in husband's possession. "Appellate courts 'do not reweigh evidence or reassess the credibility of witnesses. [Citation.]' [Citation.] Put another way, '[t]he Court of Appeal is not a second trier of fact . . . .'" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) "On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) It is a reasonable inference that husband still has the gold bars.
Finally, husband challenges the court's distribution of the lawsuit proceeds. The court charged husband with any lawsuit proceeds that he could not show were spent on family expenses. Husband claims insufficient evidence showed he had not already spent the lawsuit proceeds on the family, relying on his testimony and perceived gaps in wife's testimony. But the court found husband was "not credible" "[t]hroughout these hearings . . . ." It credited wife's claim she paid the bulk of family expenses, without assistance from the lawsuit proceeds. It is a reasonable inference that the lawsuit proceeds were not spent on the family and thus, unless husband can show otherwise, he should be charged with their receipt.
The Judgment Correctly Reflects the Visitation Ruling
Husband claims the judgment left out the court's ruling awarding him one week of visitation during Christmas. He notes it is correctible clerical error when a signed judgment "does not reflect the express judicial intention of the court . . . ." (In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 (Kaufman).)
But husband fails to show the court ever made that ruling. He cites to a page of the reporter's transcript in which (1) wife's counsel states: Husband "testified that he would like a week at Christmas, and one or two weeks in summer as his work allows; nonconsecutive"; (2) the court responds: "But the week at Christmas is consecutive"; and (3) wife's counsel replies: "Yes. One week at Christmas. One to two weeks nonconsecutive in the summer as his work allows." But this exchange transpired while wife's counsel was bringing the court up to speed on the state of the proceedings, "issue by issue." Counsel did not imply the court had already ordered Christmas vacation — just that husband had asked for it. And read in context, the court's statement merely clarified what husband had requested. It was not ordering any Christmas visitation.
Moreover, husband has waived any objection to the proposed judgment. After trial, "the court may order a party to prepare, serve, and submit the proposed judgment to the court within 10 days after the date of the order." (Cal. Rules of Court, rule 3.1590(h).) "Any party may, within 10 days after service of the proposed judgment, serve and file objections thereto." (Cal. Rules of Court, rule 3.1590(j).) Here, the court ordered wife's counsel to prepare the proposed judgment on February 1, 2010. Wife served the original proposed judgment on husband on March 9, 2010. Wife submitted that original proposed judgment to the court on or about May 4, 2010. Husband failed to file any objections at any time, waiving them.
Kaufman does not compel a different result. There, the aggrieved party approved the incorrect proposed judgment without waiving the right to correct clerical error. (Kaufman, supra, 101 Cal.App.3d at p. 149.) But Kaufman merely held the trial court did not abuse its discretion by granting a motion to correct. (Id. at p. 151.) The court did not consider any effect of rules governing the preparation of a proposed judgment. And here, husband filed no motion to correct in the trial court.
DISPOSITION
The judgment is affirmed. Wife shall recover her costs on appeal.
IKOLA, J.
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.